William Cullen v Scan Building Services Ltd (2018) SC EDIN 15 is a decision of Sheriff McGowan in the All Scotland Personal Injury Court (ASPIC) - it is the first employer’s liability case where the court has refused sanction for counsel. The decision also provides useful general guidance on the factors which will be considered by the court when determining whether or not to grant sanction for counsel.
Background to the Claim
Mr Cullen (the pursuer) was involved in a slip and trip type accident at work. Liability, contributory negligence and quantum were disputed. The action was raised for the sum of £50,000.
Test applied in determining sanction for counsel
Section 108 of the Court Reform (Scotland) Act 2014 states that the court must sanction the employment of counsel if in all the circumstances it is reasonable to do so. The court must have regard to the following factors:
- The difficulty or complexity, or likely difficulty or complexity, of the proceedings;
- The importance or value of any claim in the proceedings;
- The desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel;
- Any other such other matters as it considers appropriate.
The test applied by the court is one of objective reasonableness (see Cumming v SSE plc 2017 Rep LR 82 and V (As parent and Guardian of J (A Child)) v M & D Leisure Limited 2016 SC EDIN 22).
The pursuer‘s suggested that the arguments in relation to liability added complexity which justified the instruction of counsel. Cases such as this were more difficult now following the coming into force of Section 69 of the Enterprise and Regulatory Reform Act 2013. In this case, establishing foreseeability would be difficult given the lack of information relating to previous accidents.
It was also argued that the case was of importance to the pursuer as he had been employed by the defenders for a period of 37 years and remained employed by them. Had the case not settled and proceeded to trial then sensitive cross examination was likely to be required of the witnesses, some of whom may have been the pursuer’s colleagues. Counsel would be skilled in such cross examination. It was therefore reasonable to instruct counsel.
The defender highlighted that much of the pursuer’s factual case was admitted. Liability was based on the common law which was not difficult and the issue of contributory negligence was straightforward. The pursuer’s medical evidence was not disputed and both the injury details and valuation were straightforward. The case was not high value and therefore it was not reasonable in the circumstances to instruct counsel.
Sheriff McGowan found that it was not reasonable to instruct counsel. He outlined that where reliance is placed on the factors in Section 108; the party seeking sanction must be able to refer the court to material or information which supports the factor relied upon. The party must then be able to show the means by which that factor rendered the instruction of counsel reasonable.
In this case, Sheriff McGowan concluded that there were no persuasive arguments to support the contention that the claim was complex or difficult. This was essentially a slip and trip claim and the common law applicable was straightforward. Sheriff McGowan did not accept the argument that counsel would be more sensitive in examination of the witnesses or, indeed, why that would have been relevant as no explanation was given to him to support that proposition.
Although every application for sanction has to be considered on its own merits, the court has previously been willing to consider prior decisions as relevant. Along with the other decisions mentioned above, this case should provide useful guidance to those considering whether sanction is appropriate.